Process criticized for stripping motorists of constitutional rights By Ian Mulgrew, Vancouver Sun April 8, 2015
The B.C. government is shifting traffic violations out of court in a move lawyers fear strips motorists of constitutional rights.
The Liberals are implementing amendments passed with no fanfare in 2012 to establish a new process for handling offences under the Motor Vehicle Act, similar to the paradigm shift made dealing with drunk drivers in 2010 when most impaired charges and trials were eliminated with a heavy-handed Immediate Roadside Prohibition (IRP) regime.
The Ministry of Justice and Public Safety confirmed Tuesday that a two-stage rollout is planned to shift MVA violations from the criminal system.
Work is underway on Phase 1, it said, bringing in an electronic ticketing and online payment system; the new hearing system will follow.
Though the implementation date has not been set, the ministry maintained in an email that the Road Safety Initiative to transfer traffic disputes out of court “will create system efficiencies and make processes more accessible for citizens.”
“E-ticketing, coupled with a faster dispute resolution process, will mean that driver infractions will be recorded against driving records more quickly, thereby enabling interventions for high-risk drivers to be applied in a more timely manner,” the ministry stated.
However, lawyers who opposed the IRP scheme say this new plan is similarly offensive.
“It’s a frightening piece of legislation,” warned Vancouver lawyer Kyla Lee.
The IRP legislation is being challenged in the Supreme Court of Canada because it is a novel use of administrative law to address a criminal problem, which makes it easier for police, less expensive for government and dramatically increases fine revenue.
Aside from the concern of the province encroaching on the federal government’s criminal law-making responsibilities, the key change is that constitutional guarantees and defences available in a criminal prosecution are unavailable in an administrative context.
Under the amended law, police will stop writing “tickets” and electronically issue what are called “driving notices.”
“If you have a B.C. driver’s licence or have ever held a B.C. driver’s licence, you get a driving notice and are handled under the new scheme,” Lee said.
“If you are visiting from Alberta on vacation, you still get a traffic ticket, you get the right to have the usual court system.”
That’s one reason it’s unconstitutional, she believes, but adds the dispute and appeal process is similarly problematic.
Under the proposed plan, disputing a notice is a three-part process.
Initially, adjudication officers with the superintendent of motor vehicles provide an opportunity for drivers to plead guilty.
“They can offer you incentives to plead guilty, a fine reduction or giving you time to pay,” Lee explained. “It’s designed at the first instance to goad people into pleading guilty by giving them an incentive to do so. If you don’t do that, then you get to go to a hearing before the Driving Notice Review Board. That can be in any manner: it can be oral, it can be written, it can be in person, it can be in some kind of electronic form, or some combination of those.”
Before you have your hearing, though, Lee added, there is a pre-hearing where the accused must provide evidence.
“Now you don’t have a right to keep your defence a secret and have your witness come and have them testify that ‘he wasn’t speeding, I was in the car with him,’” Lee said. “You have to disclose all of your witnesses and your witness statements to the Crown.”
The police officer must submit his or her evidence by way of a sworn report, but if the officer who issued the driving notice can’t do it, any other officer can.
“Reading the legislation, the officer who issued the ticket isn’t even required to provide evidence other than the ticket itself,” Lee said.
“It’s insane. The decision of the board in the legislation is final — you cannot appeal the decision of the board to any court and you can’t seek judicial review.”
Although traffic tickets are misdemeanours, Lee insisted the consequences can be large, ranging from significant financial penalties and lengthy driving prohibitions to the forfeiture of a vehicle.
What the government is doing is trying to eliminate the ability of people to defend themselves, Lee maintained.
She said she and her colleagues are waiting for the new scheme to be implemented to launch a constitutional challenge:
“I think the government is trying to lull people into a false sense of security, where they feel that these changes are for the good of the public, but it appears to be for the good of government coffers.”
Read more: http://www.vancouversun.com/news/moves+eliminate+court+trials+traffic+violations/10953200/story.html#ixzz3WjXew9fo
KAMLOOPS – New legislation proposed by the B.C. Liberals this week throws out the presumption of innocence and instead presumes people accused of impaired driving are guilty until they prove otherwise, says a Vancouver defence lawyer specializing in impaired driving.
Amendments to the Motor Vehicle Act strengthen the government’s controversial Immediate Roadside Prohibition, which avoids the scrutiny of court and criminal sanction. Instead, accused drivers or their lawyers, call in to plead their case through a tribunal phone conference. The proposed amendments to prohibitions were introduced by Justice Minister Suzanne Anton in the B.C. legislature March 23.
Prohibitions were introduced in 2010 as a tool to curb the amount of drinking and driving infractions by stripping drivers of their licenses for a set number of days and impounding vehicles after a warning or fail registered on a breathalyzer. The roadside prohibitions have essentially decriminalized drinking and driving in favour of fines and vehicle impoundments. Impaired driving charges in the province have dropped 37 per cent since the introduction of the roadside prohibitions.
Lawyer Kyla Lee says the proposed legislation must be challenged.
"In every case now people are basically going to have to provide persuasive evidence about their drinking pattern and about what their blood alcohol level would be. It’s an incredible burden to put on people," Lee says adding she and co-workers plan to challenge the law’s constitutionality if it passes.
If a person is served with a prohibition, he or she has seven days to appeal it before an adjudicator via conference call. The calls are not recorded or available to media, Lee says.
“Our courts are open to the public but this tribunal is not,” she says. “The oral hearings are conducted over the phone. (The adjudicators are) in a room with closed door, nothing is recorded other than their own notes.”
Lee argues the issue is complicated when the adjudicator reviewing the case decides what constitutes evidence. Further amendments will allow the Superintendent of Motor Vehicles, Sam MacLeod, to decide on his own initiative what technical, medical or scientific materials can relate as evidence to the applicant's case.
“This change will allow the superintendent to consider expert technical evidence about (breathalyzers). Previously, a B.C. Supreme Court decision found that under the legislation, the superintendent could only consider evidence submitted by the applicant or the police in an IRP review,” MacLeod says in a statement released by the Ministry of Justice communications department.
Lee argues the legislation would grant the superintendent more power to discern evidence.
“They can point to anything in the regulation and call it a technical document. In theory, they could create a report that says whatever they want and as long as it’s prescribed in the regulation as a technical document the superintendent can consider it,” Lee says. "They’re putting restrictions on the type of evidence people can provide and how the evidence can be provided. They’re also opening it up so that the superintendent can go out and create (his) own evidence and seek out evidence. It completely interferes with the whole process of having an independent tribunal."
Previous appeals show reviews of police breathalyzers to determine if a proper reading was recorded. Successful revocations were based on evidence that demonstrated breathalyzers were improperly calibrated, or not documented properly. Lee says if the bill is passed into law, that argument may no longer be applicable.
“They’re setting it up so that everybody’s evidence is rejected," she says.
If an applicant wishes to draw on previous cases for reference, he or she will need to file a Freedom of Information request; adjudicator decisions are not publicly available.
Requests to interview Justice Minister Anton were denied by her communications department. An unattributed emailed statement was offered by the communications department but was refused by Infonews.ca
At this point it is unknown if and when Bill 15 could be passed into law.
Lee is arguing an immediate roadside prohibition case from Kamloops in the Supreme Court of Canada this May.
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Kyla Lee - Vancouver Criminal Lawyer
Vancouver Criminal Lawyer Kyla Lee is available to give interviews on all variety of criminal law topics, including drunk driving rulings and Immediate Roadside Prohibition legislation. Kyla Lee has appeared on Global BC, CBC, in the Vancouver Sun, and other media throughout BC. She is a leader in developments in drinking and driving law in British Columbia.